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McCormick is ‘most compatible’ with Michigan’s No Fault law

April 22, 2016 by Steven M. Gursten

Controversial Michigan Supreme Court Justice Stephen Markman wants Court to  ‘consider’ whether landmark ‘serious impairment of body function’ case should be ‘overruled’ and whether Michigan’s auto accident injury threshold law is ‘most compatible’ with No Fault law


McCormick is ‘most compatible’ with Michigan’s No Fault law: No need to consider overruling

Justice Stephen J. Markman, who mounted a vigorous dissent to McCormick v. Carrier, thinks the time may be ripe for a “do over” of Michigan’s automobile accident injury threshold law. In his recent dissenting statement in Hall v. Miko (a case where the other six justices declined to grant leave to appeal), Justice Markman said he thought the Supreme Court should take the case so the justices could:

“[C]onsider … [whether] this Court should overrule McCormick v. Carrier … and reinstate Kreiner v. Fischer …, which itself was overruled by McCormick.”

As many readers of this auto law blog recall, Kreiner v. Fischer – which was correctly (and mercifully) overruled by McCormick v. Carrier – was the Supreme Court’s disastrous “serious impairment of body function” ruling from 2004.  The practical effect of Kreiner was to deny justice and civil compensation to thousands of seriously injured Michigan automobile accident victims.

What made Kreiner so bad, and so worthy of scorn by auto attorneys such as myself, is that it was clearly political. Instead of interpreting a very simple, unambiguous statutory definition of serious impairment of body function, Kreiner was an activist, outcome-oriented political decision. Its judge-made hurdles created for auto accident victims and their attorneys, found nowhere in the statute, represented a radical departure from the simple, unambiguous statutory definition created by the Michigan Legislature. It created additional very high legal hurdles, restrictions to legal recovery that aren’t found in the real world of medicine (physician-imposed restrictions being the most notorious) and added temporal and durational requirements for automobile  accident victims seeking legal compensation for their pain and suffering.

That Justice Markman still isn’t ready to let go of Kreiner (wherein he signed on to the majority opinion) or his dissent in McCormick is evident from his rationale for wanting to hear the case in Hall v. Miko:

“[T]his would seem to be an appropriate case to assess both McCormick and Kreiner, which as both parties recognize set very different thresholds for tort liability, and to determine which is most compatible with MCL 500.3135.”

Thing is … we already know the answer to Markman’s not-so-innocent question. We already know which case’s analysis is the “most compatible” with the dictates of the Michigan No Fault Law’s “serious impairment of body function” statute.

It is McCormick, the seminal case whose ruling has been the law of the state for auto accident victims for the past six years.

Plus, it’s apparent that Justice Markman’s fellow justices have no doubt about Kreiner’s or McCormick’s analyses are “most compatible” with the No Fault Law.

Faced with the opportunity to embrace, confirm and perpetuate the Kreiner analysis, a majority of Michigan Supreme Court justices rejected Kreiner in favor of what would become the McCormick analysis, which the majority described as simply an application of the “unambiguous statutory language.”

Since McCormick was decided in 2010 and despite the several changes in the court’s composition, no published opinion has revisited, reexamined or otherwise questioned McCormick.

Finally, and, perhaps, most significantly, no other justices joined Justice Markman’s dissent. Most notably absent was the signature from Chief Justice Robert P. Young Jr. who both joined the majority in Kreiner and Markman’s dissent in McCormick.

To learn more about the Hall v. Miko ruling from the Michigan Court of Appeals, which gave rise to Justice Markman’s dissenting statement, please check out Michigan Auto Law’s blog post, “What’s the legal standard for pain and suffering?”

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